B285629

IN THE COURT OF APPEAL

OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION THREE

OLIVIA DE HAVILLAND,
Plaintiff and Respondent,

v.

FX NETWORKS, LLC, et al.,

Defendants and Appellants.

APPEAL FROM LOS ANGELES COUNTY SUPERIOR COURT

HOLLY KENDIG, JUDGE • CASE NO. BC667011

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF; AMICUS CURIAE BRIEF OF MOTION PICTURE
ASSOCIATION OF AMERICA, INC. AND NETFLIX, INC.
IN SUPPORT OF FX NETWORKS, LLC AND PACIFIC
2.1 ENTERTAINMENT GROUP, INC.

HORVITZ & LEVY LLP

FREDERIC D. COHEN (BAR NO. 56755)
*MARK A. KRESSEL (BAR NO. 254933)
3601 WEST OLIVE AVENUE, 8TH FLOOR
BURBANK, CALIFORNIA 91505-4681
(818) 995-0800 • FAX: (844) 497-6592
fcohen@horvitzlevy.com
mkressel@horvitzlevy.com

ATTORNEYS FOR AMICUS CURIAE

MOTION PICTURE ASSOCIATION OF AMERICA, INC. AND
NETFLIX, INC.
 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .............................................................4

APPLICATION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF OF MOTION PICTURE ASSOCIATION OF
AMERICA, INC. AND NETFLIX, INC. IN SUPPORT OF FX
NETWORKS, LLC AND PACIFIC 2.1 ENTERTAINMENT
GROUP, INC. ....................................................................................9

AMICUS CURIAE BRIEF ............................................................. 15

INTRODUCTION .......................................................................... 15

LEGAL ARGUMENT .................................................................... 20

I. THE FIRST AMENDMENT PROTECTS MOTION

PICTURES FROM FALSE LIGHT CLAIMS
ATTACKING THE USE OF ARTISTIC LICENSE AND
COMMON STORYTELLING TECHNIQUES TO
DRAMATIZE A TRUE STORY. .......................................... 20

A. Producers, authors, and directors are free to

make motion pictures that present fictionalized
history in a compelling, entertaining way so long
as the plaintiff’s portrayal is substantially true
and not highly offensive to a reasonable person. ..... 20

B. To protect the right to create compelling,

sometimes even critical, motion pictures about
public figures, the actual malice standard
requires that the defendants intended the
defamatory portrayal or implication and had
actual knowledge of—or acted with reckless
disregard toward—the falsity portrayed. ................. 28

2
II. THE FIRST AMENDMENT BROADLY PROTECTS
MOTION PICTURES FROM RIGHT OF PUBLICITY
CLAIMS BECAUSE CREATING A STORY
INVOLVING A REAL PERSON IS NOT
COMMERCIALLY EXPLOITING THAT PERSON’S
LIKENESS. .......................................................................... 37

A. The First Amendment provides docudramas with

robust protection against right of publicity claims
because they are vital to public discourse in a
free society. ................................................................. 37

B. Permitting a right of publicity claim in the

context of docudramas would violate the First
Amendment’s strict scrutiny test for content-
based speech restrictions because there is no
compelling state interest in enforcing private
misappropriation rights against docudramas. ......... 42

C. The transformative use test has not and should

not be applied to motion pictures. ............................. 44

D. Consent or compensation is not required to

protect against right of publicity claims, lest
important expressive works become subject to
censorship by their subjects. ..................................... 48

III. THE TRIAL COURT’S ANALYSIS WOULD CREATE

A CATCH-22 FOR CREATORS OF ALL TYPES OF
FICTIONALIZED MOTION PICTURES ABOUT REAL
PEOPLE AND EVENTS THAT WOULD THREATEN
THE FUTURE OF THESE IMPORTANT WORKS. ......... 51

CONCLUSION ............................................................................... 52

CERTIFICATE OF WORD COUNT ............................................. 54

3
 TABLE OF AUTHORITIES

Page(s)

Cases

Aisenson v. American Broadcasting Co.

(1990) 220 Cal.App.3d 146 ....................................................... 17

Bose Corp. v. Consumers Union of U. S., Inc.

(1984) 466 U.S. 485
[104 S.Ct. 1949, 80 L.Ed.2d 502].............................................. 31

Brodeur v. Atlas Entertainment, Inc.

(2016) 248 Cal.App.4th 665 ................................................ 18, 21

Cain v. Hearst Corp.

(Tex. 1994) 878 S.W.2d 577 ...................................................... 21

Christian Research Institute v. Alnor

(2007) 148 Cal.App.4th 71 ........................................................ 30

Comedy III Productions, Inc. v. Gary Saderup, Inc.

(2001) 25 Cal.4th 387 .............................................. 38, 45, 46, 47

Daly v. Viacom, Inc.

(N.D.Cal. 2002) 238 F.Supp.2d 1118 ....................................... 40

Davis v. Costa-Gavras
(S.D.N.Y. 1987) 654 F.Supp. 653 ................................. 32, 33, 35

Dodds v. American Broadcasting Co.

(9th Cir. 1998) 145 F.3d 1053............................................. 31, 32

Dora v. Frontline Video, Inc.

(1993) 15 Cal.App.4th 536 ........................................................ 39

Fellows v. National Enquirer, Inc.

(1986) 42 Cal.3d 234 ......................................... 18, 20, 27, 30, 36

Gates v. Discovery Communications, Inc.

(2004) 34 Cal.4th 679 ................................................................ 49

4
Gertz v. Robert Welch, Inc.
(1974) 418 U.S. 323
[94 S.Ct. 2997, 41 L.Ed.2d 789]................................................ 35

Gilbert v. Sykes
(2007) 147 Cal.App.4th 13 .................................................. 22, 26

Good Government Group of Seal Beach, Inc. v.

Superior Court
(1978) 22 Cal.3d 672 ................................................................. 31

Guglielmi v. Spelling-Goldberg Productions

(1979) 25 Cal.3d 860 .......................................................... passim

Hilton v. Hallmark Cards

(9th Cir. 2010) 599 F.3d 894..................................................... 43

Howard v. Antilla
(1st Cir. 2002) 294 F.3d 244 ......................................... 31, 32, 35

Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240 .................................... 20, 22, 25, 30

Jackson v. Paramount Pictures Corp.

(1998) 68 Cal.App.4th 10 .......................................................... 34

Jews for Jesus, Inc. v. Rapp

(Fla. 2008) 997 So.2d 1098 ....................................................... 20

Masson v. New Yorker Magazine, Inc.

(1991) 501 U.S. 496
[111 S.Ct. 2419, 115 L.Ed.2d 447].................... 21, 25, 29, 30, 32

Messenger ex rel. Messenger v. Gruner + Jahr

Printing & Pub.
(2000) 94 N.Y.2d 436 [727 N.E.2d 549] ................................... 21

New York Times Co. v. Sullivan

(1964) 376 U.S. 254
[84 S.Ct. 710, 11 L.Ed.2d 686]............................................ 30, 35

Newton v. National Broadcasting Co., Inc.

(9th Cir. 1990) 930 F.2d 662............................................... 31, 35

5
Polydoros v. Twentieth Century Fox Film Corp.
(1997) 67 Cal.App.4th 318 .................................................. 39, 50

Partington v. Bugliosi
(9th Cir. 1995) 56 F.3d 1147............................................... 24, 28

Reader’s Digest Assn. v. Superior Court

(1984) 37 Cal.3d 244 ......................................... 27, 30, 32, 35, 36

Sarver v. Chartier
(9th Cir. 2016) 813 F.3d 891......................................... 42, 43, 44

Seale v. Gramercy Pictures

(E.D.Pa. 1997) 964 F.Supp. 918 ............................................... 25

Solano v. Playgirl, Inc.

(9th Cir. 2002) 292 F.3d 1078................................................... 30

St. Amant v. Thompson

(1968) 390 U.S. 727
[88 S.Ct. 1323, 20 L.Ed.2d 262]................................................ 31

Time, Inc. v. Hill

(1967) 385 U.S. 374 [87 S.Ct. 534, 17 L.Ed.2d 456] ................ 52

Tyne v. Time Warner Entertainment Co.

(Fla. 2005) 901 So.2d 802 ......................................................... 43

Winter v. DC Comics
(2003) 30 Cal.4th 881 ................................................................ 45

Constitutions

United States Constitution, 1st Amend. ............................... passim

6
 Statutes

Civil Code, § 3294 .......................................................................... 29

Rules of Court

Cal. Rules of Court

rule 8.200(c) ..................................................................................9
rule 8.200(c)(1) .......................................................................... 14
rule 8.200(c)(3) .......................................................................... 13

Miscellaneous

Cort Casady, IMDb <https://goo.gl/3hPkwv> ............................... 50

Dargis, Review: In ‘The Post,’ Democracy Survives the

Darkness, N.Y. Times (Dec. 21, 2017)
<https://goo.gl/zU4Do3> ........................................................... 27

Fleming, ‘I, Tonya’s Margot Robbie Goes For Gold

Playing Disgraced Olympic Figure Skater,
Deadline (Nov. 29, 2017) <https://goo.gl/ZSpXyY> ................. 48

Gutkind, Keep It Real: Everything You Need to Know

About Researching and Writing Creative
Nonfiction (2011) ....................................................................... 24

Howard & Mabley, The Tools of Screenwriting: A

Writer’s Guide to the Craft and Elements of a
Screenplay (1995) ...................................................................... 22

Lipkin, Real Emotional Logic: Film and Television

Docudrama as Persuasive Practice (2002) .............................. 23

2 McCarthy, The Rights of Publicity & Privacy

(2d ed. 2017) § 8:64 ................................................................... 50

Note, Trial by Docudrama: Fact or Fiction? (1990) 9

Cardozo Arts & Ent. L.J. 201 ............................................. 22, 23

Peterson, Creating Characters, School Video News

<https://goo.gl/Ldgtxu> ............................................................. 24

Rest.2d Torts, § 652E......................................................... 18, 20, 25

7
Rest.3d Unfair Competition, § 47 ................................................. 40

Rosenthal, From Chariots of Fire to The King’s

Speech: Writing Biopics and Docudramas (2014) ................... 23

Shakespeare, Richard III, act I, scene 1 ....................................... 22

Svetkey, Making of ‘Jackie’: How a Chilean Director

Convinced Natalie Portman to Play the Grieving
First Lady, The Hollywood Reporter (Dec. 1, 2016)
<https://goo.gl/oMisiw> ............................................................. 48

Volokh, Freedom of Speech and the Right of Publicity

(2003) 40 Hous. L.Rev. 903....................................................... 45

8
 IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION THREE

OLIVIA DE HAVILLAND,
Plaintiff and Respondent,

v.

FX NETWORKS, LLC, et al.,

Defendants and Appellants.

APPLICATION FOR LEAVE TO FILE

AMICUS CURIAE BRIEF OF
MOTION PICTURE ASSOCIATION OF
AMERICA, INC. AND NETFLIX, INC. IN
SUPPORT OF FX NETWORKS, LLC AND
PACIFIC 2.1 ENTERTAINMENT GROUP,
INC.

Under California Rules of Court, rule 8.200(c), the Motion

Picture Association of America, Inc. (MPAA) and Netflix, Inc.
request permission to file the attached amicus curiae brief in
support of appellants FX Networks, LLC and Pacific 2.1
Entertainment Group, Inc.
The MPAA is a not-for-profit trade association founded in
1922 to address issues of concern to the United States motion

9
picture industry. Its members 1 and their affiliates are the leading
producers and distributors of audiovisual entertainment in the
theatrical, television and home entertainment markets. The MPAA
often has appeared as amicus curiae in cases involving claims that
potentially implicate the First Amendment rights of its members,
including cases (like this one) in which the plaintiff is attempting to
assert a right of publicity claim based on allegations that her name,
likeness, or persona was used in an expressive work without
permission.
Netflix, Inc. is based in Los Gatos, California and is the
world’s leading internet television network with over 100 million
streaming members in over 190 countries. Netflix members view
more than 125 million hours of TV shows and movies per day,
including owned and licensed original series, documentaries and
feature films. Additionally, in the United States, Netflix members
can receive DVDs delivered to their homes.
Amici urge this court to reverse the trial court’s decision.
Affirming the trial court’s analysis—an unprecedented deviation
from decades of case law protecting freedom of expression from state
tort law claims—threatens to doom entire genres of fact-based
motion pictures, including docudramas and biopics. The trial court
found an actionable claim for false light invasion of privacy based on
nothing more than the defendants’ use of centuries-old storytelling

1 The members of the MPAA are: Paramount Pictures

Corporation; Sony Pictures Entertainment Inc.; Twentieth Century
Fox Film Corporation; Universal City Studios LLC; Walt Disney
Studios Motion Pictures; and Warner Bros. Entertainment Inc.

10
techniques that are necessary to dramatize stories about or inspired
by real people or events. The court also found an actionable claim
for right of publicity against the creators of a docudrama about real
people merely because the creators did not obtain the consent of, or
financially compensate, a celebrity who was relevant to and
depicted in the dramatized story.
As discussed in the attached brief, the First Amendment
severely limits false light claims in the context of docudramas and
other fictional and semi-fictional works. Courts around the country,
including the United States Supreme Court, the California Court of
Appeal and the Ninth Circuit, recognize that to create docudramas
(which unlike documentaries and newspaper accounts depict
dramatized stories of events and people), screenwriters need the
freedom to create fictional dialogue, imagined scenes, composite
characters, and other dramatic elements without fear of unfounded
liability. A plaintiff pursuing a false light claim must show both
that her portrayal is substantially false, and that this false
characterization is highly offensive or defamatory. To protect works
such as docudramas from censorship by celebrities or politicians
who want to tightly control their depiction, public figures pursuing
a false light claim must also demonstrate the defendant intended to
convey the asserted false implication and knew, or acted in reckless
disregard of whether, that implied meaning or portrayal was false.
Thus, docudramas and other constitutionally-protected works of
fiction and drama present special concerns that are not at issue
with works of non-fiction that aim to be literally true, such as news
reports. When a work seeks to dramatize real events, literal truth

11
is not required or expected, and the use of storytelling techniques
(e.g., dramatized interviews, invented conversation, compressed
timelines, flashbacks to past events, and other fictionalization tools)
cannot support a claim of falsity or actual malice. Indeed, viewers
of docudramas understand that real life events are not portrayed in
exactly the same way as they actually occurred, but rather are
woven together around a story and narrative. Absent the
filmmakers’ subjective intent to render a knowingly false portrayal
about a subject that is not substantially true, and a portrayal that is
highly offensive or defamatory, no tort can be stated.
Courts have afforded fictionalized motion pictures based on
real events and people even greater constitutional and common law
shields from right of publicity claims, which are limited to
protecting individuals against unlawful commercial exploitation of
their name and likeness. The California Supreme Court and
numerous other courts have instructed that the plaintiff’s depiction
in a motion picture about a story to which the plaintiff is relevant
flatly does not amount to commercial exploitation, no matter
whether the story being dramatized is told realistically, fictionally,
or semi-fictionally. This shield against right of publicity claims is
guided by the high bar set by the “compelling state interest” test.
States do not have a compelling interest in enforcing
misappropriation laws against a defendant that is not engaging in
crass commercialization of the plaintiff’s persona.
The type of claims pursued by a celebrity like Olivia de
Havilland here deserve especially heightened scrutiny because
docudramas, biopics and historical dramas—which by design do not

12
portray individuals or events literally or with obedience to historical
fact—often depict real people who may not like, and may even be
offended or embarrassed by, how they are portrayed. Yet a
plaintiff’s subjective dissatisfaction with her portrayal is not enough
to support an actionable false light claim. An actionable portrayal
must be highly offensive to a reasonable person.
In deciding Ms. de Havilland’s case, the MPAA and Netflix
urge this court to reaffirm that, within these generous boundaries,
the First Amendment allows producers to tell fictionalized stories
about real people. Only under narrow circumstances, as discussed
in the attached amicus brief, can that First Amendment right be
trumped by individuals seeking compensation or censorship over
creative works. Those circumstances are not remotely present here.
As counsel for the MPAA and Netflix, we have reviewed the
briefs filed in this case and believe this court will benefit from
additional briefing. We have attempted to supplement, but not
duplicate, the parties’ briefs.
No party or counsel for a party in the pending appeal
authored this proposed brief in whole or in part or made a monetary
contribution intended to fund the preparation or submission of the
proposed brief. No person or entity other than amicus, its members,
or their counsel made a monetary contribution intended to fund the
preparation or submission of the proposed brief. (Cal. Rules of
Court, rule 8.200(c)(3).) Although Twentieth Century Fox Film
Corporation, to which appellant FX Networks, LLC is a related
entity, is a member of the MPAA, and Walt Disney Studios Motion
Pictures is a member of the MPAA, neither entity authored this

13
brief in whole or in part or made a monetary contribution intended
to fund the preparation or submission of the proposed brief.
This application is timely. It is being submitted within
14 days of the filing of appellant’s reply brief. (Cal. Rules of Court,
rule 8.200(c)(1).)
Accordingly, amicus requests that this court accept and file
the attached amicus curiae brief.

January 25, 2018 HORVITZ & LEVY LLP

FREDERIC D. COHEN
MARK A. KRESSEL

By:
Mark A. Kressel

Attorneys for Amicus Curiae

MOTION PICTURE ASSOCIATION
OF AMERICA, INC. and NETFLIX,
INC.

14
 AMICUS CURIAE BRIEF

INTRODUCTION

A team of award-winning authors, directors, artists, and

actors created a docudrama telling a story about the real-life feud
between two Hollywood legends, Bette Davis and Joan Crawford.
The eight-part Feud: Bette and Joan uses this story as a dramatic
vehicle to explore issues that could not be more timely—women in
Hollywood; sexism and the challenges it poses for professional
advancement; and how the more powerful in society are able to pit
the more vulnerable against each other in a fight for survival. Now,
Olivia de Havilland, a celebrity who is dissatisfied with her
portrayal as a minor character in Feud, has filed a lawsuit seeking
millions of dollars for allegedly portraying her in a false light and
violating her right of publicity. If her lawsuit succeeds, it would
stifle the creation and distribution of a culturally-significant
docudrama.
Abrogating constitutional free speech rights is a serious
matter, and courts must proceed with caution. The trial court,
however, threw caution to the wind and permitted Ms. de
Havilland’s false light claims to proceed because the defendants
chose to dramatize and interpret the story of Crawford and Davis’s
rivalry. The court did this despite defendants’ good faith belief
based on extensive historical research that Feud captured the
essence of what had occurred. The court’s false light analysis boils
down to a conclusion that the common storytelling techniques used

15
in Feud, such as creating dialogue or rearranging timelines, which
have been used to create works of fiction and semi-fiction for
centuries, result in per se liability. The trial court allowed Ms. de
Havilland’s right of publicity claims to proceed because the
defendants knowingly used her persona in a docudrama without
consent or compensation, and thus did not give Ms. de Havilland
editorial control of her depiction. The trial court’s analysis puts
creators of docudramas and other fictionalized works about or
inspired by real people or events in an untenable Catch-22: the
court reasoned that any docudrama that portrays its subjects too
realistically is actionable for violating their right of publicity, yet
any docudrama that portrays its subjects with anything less than
absolute, literal accuracy is actionable under false light. This
exacerbates the chilling fear of litigation that would be created by
affirming the trial court’s decision.
The MPAA and Netflix cannot overstate the serious
implications that the trial court’s rulings would have for the
creation of fictionalized motion pictures and other expressive works
about or inspired by real people or events—works, like Feud and
countless others, that are vital to public discourse. Authors,
writers, and directors cannot tell these types of stories if they are
required to present every moment with 100 percent literal accuracy,
without having any character utter a word that was not actually
said, and without every event in the story taking as much time on
screen as it did in real life. It would mark a radical departure from
decades of case law if the mere use of standard storytelling
techniques—indeed the basic tools of the creators’ artistry—were

16
sufficient to support viable false light claims. Similarly, if creators
of expressive works that dramatize stories about real people can
face actionable right of publicity claims unless they obtain the
consent of everyone relevant to the story, fictionalized stories about
real people will be stifled by censorship attempts launched by our
most popular, powerful, and controversial celebrities and
politicians—and limited to depicting only their (likely highly
sanitized)—version of events. Motion pictures that criticize,
analyze, or reimagine our heroes and leaders will be off limits, and
both artistic freedom and public discourse will suffer accordingly.
Under long-standing precedent, not only must claims like Ms.
de Havilland’s fail under the First Amendment, they should not
survive dispositive motions such as the anti-SLAPP motion on
appeal here. Courts play an important gatekeeping role in ferreting
out, early in the litigation process, false light claims that are
frivolous, unsubstantiated, or aimed at curtailing constitutionally
protected expression. To survive a dispositive motion, the plaintiff
must show evidence of: (1) a verifiable statement of fact, that is (2)
substantially false, (3) highly offensive to a reasonable person or
defamatory, 2 and, where the plaintiff is a public figure (4) shown by

2 This brief uses the phrase “highly offensive to a reasonable

person or defamatory” in the sense that these two concepts are
roughly synonymous, not in the disjunctive to imply that a plaintiff
can prevail on a false light claim without proving that the portrayal
was highly offensive to a reasonable person. (See Aisenson v.
American Broadcasting Co. (1990) 220 Cal.App.3d 146, 161 [“A
‘false light’ cause of action is in substance equivalent to a libel
claim, and should meet the same requirements of the libel claim,
including proof of malice”].) The California Supreme Court has
(continued...)

17
clear and convincing evidence to have been made with actual
malice. The trial court erred by not applying this strict test. It did
not inquire if the depiction was highly offensive or defamatory.
Instead it focused on storytelling techniques that create
fictionalizations and are inherent in docudramas. Unless these
storytelling techniques are used with actual malice to portray a
material and highly offensive falsehood, they are not actionable
under a false light theory. Requiring exact replication of past
events, conversations, and timelines sets up an impossible situation,
creates less compelling stories, and stifles artistic expression.
Dramatized motion pictures that tell stories about real people
are also entitled to broad First Amendment protections from right of
publicity claims. The California Supreme Court has explicitly held
that this robust protection exists regardless of whether the
portrayal of the plaintiff is fictional or realistic, transformative or
lifelike, documentary or satirical. The Ninth Circuit enforces this
broad protection by applying the often dispositive strict scrutiny
standard to misappropriation laws—as should this court.

(...continued)
explained: “In order to be actionable, the false light in which the
plaintiff is placed must be highly offensive to a reasonable person.
(Rest.2d Torts, § 652E, p. 394.) Although it is not necessary that the
plaintiff be defamed, publicity placing one in a highly offensive false
light will in most cases be defamatory as well.” (Fellows v. National
Enquirer, Inc. (1986) 42 Cal.3d 234, 238-239 (Fellows); Brodeur v.
Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 678 (Brodeur)
[“ ‘A “false light” claim, like libel, exposes a person to hatred,
contempt, ridicule, or obloquy and assumes the audience will
recognize it as such’ ”].)

18
 Affirming the trial court, and thus easing these standards to
overcome an author’s First Amendment protections, would have a
devastating chilling effect on authors, screenwriters, and producers.
Indeed, the lists of the 2018 Golden Globe and Academy Awards
nominees brim with docudramas about or inspired by real events
and real people who are still living, including: The Post (The
Washington Post’s publication of the Pentagon Papers), Dunkirk
(World War II battle), I, Tonya (Tonya Harding’s ice skating career),
The Disaster Artist (the making of the movie The Room), Darkest
Hour (Winston Churchill’s decisions during World War II), All the
Money in the World (Kidnapping of John Paul Getty III), Molly’s
Game (Olympic-class skier who ran the world’s most exclusive high-
stakes poker game), and The Crown (Queen Elizabeth II and royal
family). Under the trial court’s analysis here, all of these
docudramas could be actionable based on their content merely for
telling their important stories without adhering to the literal facts
of the historical record and obtaining all of their subjects’ consent.
But, for the reasons explained below, the First Amendment does not
permit that result.

19
 LEGAL ARGUMENT

I. THE FIRST AMENDMENT PROTECTS MOTION

PICTURES FROM FALSE LIGHT CLAIMS
ATTACKING THE USE OF ARTISTIC LICENSE AND
COMMON STORYTELLING TECHNIQUES TO
DRAMATIZE A TRUE STORY.

A. Producers, authors, and directors are free to make

motion pictures that present fictionalized history in a
compelling, entertaining way so long as the plaintiff’s
portrayal is substantially true and not highly offensive
to a reasonable person.

The elements of a false light claim brought by a public figure

are a published statement or implied meaning that: (1) asserts a
verifiable statement of fact; (2) is substantially false; (3) is highly
offensive to a reasonable person or defamatory; and (4) was made
with actual malice. (Jackson v. Mayweather (2017) 10 Cal.App.5th
1240, 1264 (Jackson); Rest.2d Torts, § 652E.) “In order to be
actionable, the false light in which the plaintiff is placed must be
highly offensive to a reasonable person.” (Fellows, supra, 42 Cal.3d
at pp. 238-239, citing Rest.2d Torts, § 652E, p. 394.) 3 While amici

3 The false light cause of action remains controversial, and several

states have rejected it as either duplicative of traditional
defamation or inconsistent with the First Amendment. (See, e.g.,
Jews for Jesus, Inc. v. Rapp (Fla. 2008) 997 So.2d 1098, 1113
(continued...)

20
agree with the defendants that the trial court erred with respect to
many of these elements, this brief focuses on three of great
importance to the motion picture industry because of their power at
the dispositive motion stage to weed out meritless claims that
attack expressive freedom: whether the portrayal at issue is
substantially false and highly offensive, and whether defendants
published that portrayal with actual malice. A failure to interpret
these requirements correctly will lead to an unconstitutional
chilling of free speech in the form of culturally-important
docudramas, biopics and historical dramas based on real events and
people.
“ ‘ “The sine qua non of recovery for defamation . . . is the
existence of a falsehood.” ’ ” (Brodeur, supra, 248 Cal.App.4th at p.
678, emphasis omitted [discussing a false light claim].) However,
the law does not require that defendants maintain an absolute
adherence to the historical record. Rather, for liability, plaintiff has
the burden of proving material falsity (or the absence of substantial
truth). (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496,
516-517 [111 S.Ct. 2419, 115 L.Ed.2d 447] (Masson).) “ ‘ “Minor
inaccuracies do not amount to falsity so long as ‘the substance, the

(...continued)
[“ ‘there is not even a single good case in which false light can be
clearly identified as adding anything distinctive to the law’ ”]; Cain
v. Hearst Corp. (Tex. 1994) 878 S.W.2d 577, 580 [it “unacceptably
increas[es] the tension that already exists between free speech
constitutional guarantees and tort law”]; Messenger ex rel.
Messenger v. Gruner + Jahr Printing & Pub. (2000) 94 N.Y.2d 436
[727 N.E.2d 549, 556] [New York does not recognize tort of false
light].)

21
gist, the sting, of the libelous charge be justified.’ ’ ” (Jackson,
supra, 10 Cal.App.5th at p. 1262; see also Gilbert v. Sykes (2007)
147 Cal.App.4th 13, 28 (Gilbert) [“ ‘ “It is well settled that a
defendant is not required in an action of libel to justify every word
of the alleged defamatory matter; it is sufficient if the substance,
the gist, the sting of the libelous charge be justified, and if the gist
of the charge be established by the evidence the defendant has
made his case” ’ ”].)
While plaintiff’s burden of proving material falsity is critical
in any false light claim, it is particularly salient when false light
claims are asserted against docudramas because these works by
necessity include fictionalized elements to tell a story within the
limits of the medium, and they are not expected to be literally true
in every detail. All fictional and semi-fictional works are by their
nature a type of calculated falsehood—no one really believes King
Richard III of England actually said, “Now is the winter of our
discontent” 4—and courts have recognized that First Amendment
protections, including the substantial truth and actual malice
defenses, must accommodate dramatized works based on real
events and people.
Docudramas fit squarely within this protected sphere, being
“neither completely factual nor totally fictional.” (Note, Trial by
Docudrama: Fact or Fiction? (1990) 9 Cardozo Arts & Ent. L.J. 201,
201 (hereafter Trial by Docudrama).) “[R]eal people’s lives rarely
fall into a three-act structure.” (Howard & Mabley, The Tools of

4 Shakespeare, Richard III, act I, scene 1.

22
Screenwriting: A Writer’s Guide to the Craft and Elements of a
Screenplay (1995) p. 9.) Thus, “docudrama adapts the basic
character, conflict, and closure elements of classic Hollywood
narrative form as configurations based on” real life experiences.
(Lipkin, Real Emotional Logic: Film and Television Docudrama as
Persuasive Practice (2002) p. 55.)
Docudramas’ well-recognized storytelling techniques include:
• Fictionalized dialogue and scenes. “Where feasible, and
when it is sufficiently dramatic, [screenwriters] try to retain
authentic dialogue.” (See Rosenthal, From Chariots of Fire to
The King’s Speech: Writing Biopics and Docudramas (2014) p.
155 (hereafter Rosenthal).) Oftentimes, however, a sufficient
record of what was said does not exist. In that case, which is
“probably 90 percent of the time,” screenwriters “go on to
create [their] own.” (Id. at 155.) Indeed, invented dialogue
and concocted scenes are virtually a necessity in docudramas
unless the docudrama is based solely on trial transcripts.
(See Trial by Docudrama, supra, 9 Cardozo Arts & Ent. L.J.
at p. 201.)
• Composite characters. Many of humanity’s most
interesting achievements have been accomplished by groups
of people. It would be impossible for a motion picture or
television show about such an achievement to depict all of
these individuals. A typical solution is to compress two or
more people into a single character. (See Rosenthal, supra, p.
90.)

23
 • Time Compression and telescoping. Flashbacks, flash-
forwards, time compression, and time expansion are often
used strategically to tell the author’s story. (See Peterson,
Creating Characters, School Video News
<https://goo.gl/Ldgtxu> [as of Dec. 1, 2017].) An event
portrayed in a docudrama may have taken months or years,
and time compression “allows writers to manage chronology
and control the pace of their narratives.” (Gutkind, Keep It
Real: Everything You Need to Know About Researching and
Writing Creative Nonfiction (2011) p. 42.)
Thus, when creating docudramas, due to the constraints of
the format, there is no attempt, let alone legal duty, to adhere to the
literal historical record. Yet this was the very foundation of the
trial court’s ruling. (4 JA 1091.) As California and other courts
have long recognized, First Amendment protections for docudramas,
biopics and other historical dramas mandate that the use of such
storytelling techniques do not constitute “falsity” for purposes of
false light or defamation claims—otherwise this entire culturally-
important genre would be vulnerable to rampant litigation and
large civil verdicts. (See Partington v. Bugliosi (9th Cir. 1995) 56
F.3d 1147, 1161 (Partington); id. at p. 1155 [viewers are aware that
docudramas “often rely heavily upon dramatic interpretations of
events and dialogue filled with rhetorical flourishes in order to
capture and maintain the interest of their audience” and “[c]ourts
have consistently rejected attempts to base damage claims upon
minor factual errors when the gist of the work, taken as a whole,
cannot serve as the basis for a defamation or false light claim”];

24
Seale v. Gramercy Pictures (E.D.Pa. 1997) 964 F.Supp. 918, 923
(Seale) [in docudramas, “ ‘[m]inor inaccuracies do not amount to
falsity’ ”], quoting Masson, supra, 501 U.S. at p. 516.)
In Seale, for example, a founder of the Black Panthers
brought a false light claim against the makers of Panther, a
docudrama about the history of the Black Panthers. (Seale, supra,
964 F.Supp. at pp. 919, 922.) He challenged a scene that was
loosely based on a scene from his own autobiography, containing
minor alterations and inaccuracies. (Id. at p. 925.) The court
explained: “The plaintiff’s privacy is not invaded when the
unimportant false statements are made, even when they are made
deliberately. It is only when there is such a major
misrepresentation of his character, history, activities or beliefs that
serious offense may reasonably be expected to be taken by a
reasonable man in his position, that there is a cause of action for
invasion of privacy.” (Id. at p. 924, quoting Rest.2d Torts, § 652E,
com. c.)
The alleged false statement or implied meaning must not only
be substantially false, but also highly offensive or defamatory to a
reasonable person. A plaintiff’s subjective dissatisfaction or
embarrassment about her portrayal is insufficient to substantiate a
viable claim. Thus, an actionable falsity in an expressive work
must give the viewer a worse impression of the plaintiff than if the
work had been accurate. (See Masson, supra, 501 U.S. at pp. 516-
517; Jackson, supra, 10 Cal.App.5th at pp. 1262-1263 [statement
that actress’s entire appearance was the result of plastic surgery
not actionable because some of her appearance was due to plastic

25
surgery; the inaccurate part of statement was no more offensive
than the true part]; Gilbert, supra, 147 Cal.App.4th at pp. 29-30
[statement that plastic surgeon “ ‘quickly’ ” suggested surgical
enhancement, even if not entirely true, was not actionable because
not defamatory].)
The trial court here found that Ms. de Havilland presented
evidence to create a triable claim of falsity as to Feud’s portrayal of
her based on the following scenes: (1) giving an interview at the
1978 Academy Awards that she did not give (although she gave
interviews with similar content at other times); (2) publicly
describing her sister as a “bitch” (although she actually publicly
described her sister as a “Dragon Lady”); and (3) joking to her friend
in private that Frank Sinatra drank all the alcohol in his dressing
room (although it was well known that Sinatra drank heavily). (4
JA 1085-1087.) The trial court fundamentally erred by finding that
these scenes constituted actionable “falsity” because they were
neither substantially different than the literal truth nor a highly
offensive portrayal to a reasonable person. (Ibid.) For example,
while the imagined interview at the 1978 Academy Awards never
occurred, the scene was nonetheless substantially true within the
meaning of First Amendment law because Ms. de Havilland gave
other actual interviews at which she similarly spoke of people she
knew. Furthermore, the mere notion that Ms. de Havilland would
have given an interview at the 1978 Academy Awards when in fact
she did not is not remotely in itself highly offensive or defamatory.
(See AOB 35-36.) In the docudrama context, the interview was—as
is so commonly the case—a device used by the screenwriters to

26
synthesize important story points and frame the issues at the heart
of the production. In other words, the mere shifting of the time
when substantially true statements were made did not render those
statements false under the law. It just improved the storytelling. 5
Each of Ms. de Havilland’s claims is based on nothing more
than the exercise of what our Supreme Court has referred to as
“literary license” (Reader’s Digest Assn. v. Superior Court (1984) 37
Cal.3d 244, 262 (Reader’s Digest), which is essential to the creation
of docudramas. “Courts should proceed very cautiously before
upsetting the delicate balance that has developed in the law of
defamation between the protection of an individual’s interest in
redressing injury from published falsehoods, and the protection of
society’s interest in vigorous debate and free dissemination of the
news.” (Fellows, supra, 42 Cal.3d at p. 248.) This same delicate
balance exists for motion pictures. Accordingly, this court should
reject the trial court’s analysis, under which virtually any deviation
from reality can be a basis for liability. “Authors should have

5 The New York Times’s review of The Post, a 2018 Golden Globe
and Oscar nominee about the publication of the Pentagon Papers,
expressly lauds the filmmakers’ artistry in this regard: “Like many
movies that turn the past into entertainment, ‘The Post’ gently
traces the arc of history, while also bending it for dramatic punch
and narrative expediency. . . . And while it’s no surprise that the
movie omits and elides important players and crucial episodes, its
honed focus jibes with the view of the former New York Times
columnist Anthony Lewis, who wrote that the ‘public disclosure of
the Pentagon Papers challenged the core of a president’s power: his
role in foreign and national security affairs.’ ” (Dargis, Review: In
‘The Post,’ Democracy Survives the Darkness, N.Y. Times (Dec. 21,
2017) <https://goo.gl/zU4Do3> [as of Jan. 23, 2018].)

27
‘breathing space’ in order to criticize and interpret the actions and
decisions of those involved in a public controversy. If they are not
granted leeway in interpreting ambiguous events and actions, the
public dialogue that is so important to the survival of our democracy
will be stifled. We must not force writers to confine themselves to
dry, factual recitations or to abstract expressions of opinion wholly
divorced from real events. Within the limits imposed by the law, we
must allow, even encourage, them to express their opinions
concerning public controversies and those who become involved in
them.” (Partington, supra, 56 F.3d at p. 1159, fn. omitted.)

B. To protect the right to create compelling, sometimes

even critical, motion pictures about public figures, the
actual malice standard requires that the defendants
intended the defamatory portrayal or implication and
had actual knowledge of—or acted with reckless
disregard toward—the falsity portrayed.

The trial court here also crucially erred by finding that Ms. de
Havilland could establish actual malice merely by demonstrating
that Feud’s producers knowingly fictionalized certain aspects of her
portrayal through imagined scenes, fictionalized dialogue, and
altered timelines. (4 JA 1088-1091.) The trial court did not identify
any evidence that the defendants intended any of the alleged false
portrayals that Ms. de Havilland challenges, or that they told
deliberate falsehoods or recklessly disregarded the truth, with
respect to any alleged highly offensive or defamatory statements or

28
implied meanings. (Ibid.) For example, there is absolutely no
evidence here that Feud’s creators ever intended to portray Ms. de
Havilland as a gossip, nor even any evidence that they had any
inkling that the mere portrayal of her character giving fictional
interviews (which was clearly intended to be a thematic framing
device) would even be interpreted as implying that Ms. de Havilland
was a gossip. (See ibid.) Nor did the trial court find that being
portrayed as gossipy or vulgar rises to the level of being highly
offensive within the meaning of false light doctrine. Rather, the
trial court reasoned that because the authors strove to be generally
consistent with the historical record, they acted with actual malice
because they knew that not every word and gesture in Feud was
anywhere close to 100 percent accurate. (4 JA 1091.)
The trial court’s analysis, especially in the context of a
docudrama, is fundamentally flawed. Creators of fictional or semi-
fictional motion pictures do not lose First Amendment protections
from false light claims when they tell stories about real events and
people in a manner that employs standard storytelling techniques
and dramatic elements. Whether a work is a non-fiction
documentary or a fictionalized docudrama, “[t]he First Amendment
protects authors and journalists who write about public figures by
requiring a plaintiff to prove that the defamatory statements were
made with what [courts] have called ‘actual malice,’ a term of art
denoting deliberate or reckless falsification.” 6 (Masson, supra, 501

6 The term actual malice is “sometimes referred to as

‘constitutional malice’ to distinguish it from the malice requirement
for recovery of punitive damages under state law as defined in Civil
(continued...)

29
U.S. at p. 499.) The actual malice requirement applies to false light
claims. (Fellows, supra, 42 Cal.3d at pp. 238-239; Reader’s Digest,
supra, 37 Cal.3d at p. 265.) It is a “subjective test, under which the
defendant’s actual belief concerning the truthfulness of the
publication is the crucial issue.” (Reader’s Digest, at p. 257.)
A public figure plaintiff cannot recover unless she proves by
clear and convincing evidence that the defendant made the
defamatory statement with “ ‘knowledge that it was false or with
reckless disregard of whether it was false or not.’ ” (Masson, supra,
501 U.S. at p. 510, quoting New York Times Co. v. Sullivan (1964)
376 U.S. 254, 279-280 [84 S.Ct. 710, 11 L.Ed.2d 686] (New York
Times); see also Solano v. Playgirl, Inc. (9th Cir. 2002) 292 F.3d
1078, 1084 [it is plaintiff’s burden to prove actual malice by clear
and convincing evidence].) Indeed, even at the anti-SLAPP stage,
the plaintiff must come forward with evidence that could support a
jury finding of actual malice under the demanding clear and
convincing standard. (Christian Research Institute v. Alnor (2007)
148 Cal.App.4th 71, 86.) This bar is so high that on appellate
review, “ ‘[j]udges, as expositors of the Constitution, must
independently decide’ ” whether the record evidence “ ‘is of the
convincing clarity required to strip the utterance of First
Amendment protection.’ ” (Ibid.)
In addition, where the claimed highly offensive or defamatory
aspect of the portrayal is implied, as in Ms. de Havilland’s case, the

(...continued)
Code section 3294 (also known as ‘malice-in-fact’).” (Jackson, supra,
10 Cal.App.5th at p. 1260, fn. 8.)

30
plaintiff must show that the defendant “ ‘intended to convey the
defamation impression.’ ” (Dodds v. American Broadcasting Co.
(9th Cir. 1998) 145 F.3d 1053, 1063-1064 (Dodds).) The California
Supreme Court, in an earlier case, alluded to just this, holding that
the plaintiff must demonstrate that “the defendant either
deliberately cast his statements in an equivocal fashion in the hope
of insinuating a defamatory import to the reader, or that he knew or
acted in reckless disregard of whether his words would be
interpreted by the average reader as defamatory statements of
fact.” (Good Government Group of Seal Beach, Inc. v. Superior
Court (1978) 22 Cal.3d 672, 684.)
Because actual malice is a “deliberately subjective” test,
liability cannot be imposed for an implication that merely “ ‘should
have been foreseen.’ ” (Newton v. National Broadcasting Co., Inc.
(9th Cir. 1990) 930 F.2d 662, 680 (Newton); accord, Howard v.
Antilla (1st Cir. 2002) 294 F.3d 244, 254 (Howard).) That would
improperly erect an “objective negligence test,” whereas “[t]he
relevant inquiry” for actual malice asks if the defendant “ ‘realized
that his statement was false’ or whether he ‘subjectively entertained
serious doubt as to the truth of his statement.’ ” (Newton, at p. 680,
quoting Bose Corp. v. Consumers Union of U. S., Inc. (1984) 466
U.S. 485, 511, fn.30 [104 S.Ct. 1949, 80 L.Ed.2d 502].)
Importantly, a creator of a docudrama, biopic, or historical
drama cannot subjectively know that he is conveying a false
implication unless he realizes he is conveying that implication in
the first place. He cannot have “in fact entertained serious doubts
as to the truth of his publication” (St. Amant v. Thompson (1968)

31
390 U.S. 727, 731 [88 S.Ct. 1323, 20 L.Ed.2d 262], emphasis added),
unless he is aware that his publication conveys a false implication.
There is no actual malice where the defendants “ ‘unknowingly
misled the public.’ ” (Dodds, supra, 145 F.3d at p. 1064, emphasis
added; see also Howard, supra, 294 F.3d at p. 254 [that defendant
“should have foreseen the potential interpretation” is insufficient].)
As shown above, the plaintiff must demonstrate actual malice
with respect to those false statements she proves are highly offensive
or defamatory. The mere fact that the defendants used standard
storytelling techniques inherent in creating a docudrama, such as
altering the sequence of events or combining more than one event
into a single scene, does not, without more, show actual malice
when those creative elements are not themselves highly offensive to
a reasonable person or defamatory. A rule to the contrary would be
a radical departure from the protections afforded to all fictionalized
works. (Masson, supra, 501 U.S. at p. 514: see also id. at p. 516 [“If
an author alters a speaker’s words but effects no material change in
meaning, including any meaning conveyed by the manner or fact of
expression, the speaker suffers no injury to reputation that is
compensable as a defamation”]; Reader’s Digest, supra, 37 Cal.3d at
p. 256 [“he cannot recover unless he proves, by clear and convincing
evidence [citation], that the libelous statement was made with ‘
“actual malice” ’ ” (emphasis added)]; (Davis v. Costa-Gavras
(S.D.N.Y. 1987) 654 F.Supp. 653, 658 (Davis) [no actual malice
because “the dramatic overlay supplied by the film does not serve to
increase the impact of what plaintiff charges as defamatory”
(emphasis added)].)

32
 In Davis, Judge Pollack reviewed existing case law and
provided a comprehensive and persuasive analysis of the
importance of the actual malice standard to protecting docudramas
from false light claims:
Self-evidently a docudrama partakes of author’s
license—it is a creative interpretation of reality—and if
alterations of fact in scenes portrayed are not made
with serious doubts of truth of the essence of the
telescoped composite, such scenes do not ground a
charge of actual malice.

(Davis, supra, 654 F.Supp. at p. 658.) The court concluded, “The

cases on point demonstrate that the First Amendment protects such
dramatizations and does not demand literal truth in every episode
depicted; publishing a dramatization is not of itself evidence of
actual malice.” (Ibid.)
The trial court was also far off base when it found that Feud’s
creators’ reliance on published sources that they subjectively
believed were reliable was insufficient to rebut a claim of actual
malice, even at the anti-SLAPP stage. (See 4 JA 1090 [“While
Defendants also argue that they relied on books written about
Plaintiff, the supplemental declaration of Cort Casady points out
that the comments in books attributed to Plaintiff have not been
properly sourced”].) “Leeway is properly afforded to an author”
who attempts to dramatize real events by “fairly represent[ing] the
source materials for the film believed to be true by the filmmakers.”
(Davis, supra, 654 F.Supp. at p. 658.) One reason such leeway
must be given is that often the historical records are incomplete or
unknowable, and require authors to make assumptions. Not every

33
conversation or event is documented. Recollections of the same
events can differ or become foggy with time. Requiring 100 percent
accuracy is an unachievable standard in the docudrama and biopic
context, and would render dramatizations of real events legally
perilous for their authors.
Furthermore, many producers invest significant resources
and take great pride in the use of well-regarded published historical
sources by celebrated historians, as was the case with Feud’s
creators, who relied on numerous news articles and two full-length
books devoted to the subject of Crawford and Davis’s rivalry. (See
AOB 16-18, 23 [discussing use of Shaun Considine’s Bette and Joan:
The Divine Feud and Ed Sikov’s Dark Victory: The Life of Bette
Davis.) A rule that plaintiffs may proceed to a trial unless
producers and authors second-guess their sources and effectively
conduct their own independent research on every detail of the story
they wish to tell would create an impossible—and
unconstitutional—barrier to telling their stories, set an unworkable
standard for fact checking and script annotating, and ultimately
confer on the filmmakers’ subjects a de facto right to censor the
motion picture.
Depriving filmmakers of the ability to rely on source material
they subjectively believe is reliable is also contrary to governing
law, including the very case that the trial court erroneously relied
on and selectively quoted to reach a contrary result. (See 4 JA 1090;
Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 35-
36 [holding that defendant’s reliance on sources that may later turn
out to be incorrect does not show actual malice if the defendant had

34
no reason to know or suspect the incorrectness at the time].)
Indeed, the trial court’s analysis here—suggesting Feud’s creators
had to verify for themselves whether every statement in a published
book they believed to be reliable was properly sourced—sounds
more in negligence, i.e., whether the creators used due care in
relying on their source material. Yet, the negligence standard for
First Amendment protection only applies in the context of non-
public figures. (See, e.g., Gertz v. Robert Welch, Inc. (1974) 418 U.S.
323, 345-346 [94 S.Ct. 2997, 41 L.Ed.2d 789].) Negligence is an
objective test, whereas the “actual malice” test for public figure
plaintiffs is subjective. (See id. at p. 334, fn. 6; Newton, supra, 930
F.2d at p. 680; Howard, supra, 294 F.3d at p. 254.) Ever since New
York Times, it would be a violation of binding United States
Supreme Court precedent to apply a negligence standard to a public
figure’s defamation or false light claim. (See New York Times,
supra, 376 U.S. at pp. 279-280.) Thus, no case permitted this trial
court to impose a duty of its own creation on Feud’s creators to
personally check the sourcing of every statement in a published
book they believed true. Such a duty would squarely violate the
First Amendment.
For similar reasons, the trial court was also mistaken in
finding that the defendants’ failure to obtain Ms. de Havilland’s
consent shows actual malice. (See 4 JA 1097.) The failure to
contact the plaintiff during the preparation of a docudrama or other
fictional work does not support an actual malice finding. (Reader’s
Digest, supra, 37 Cal.3d at p. 259; see also Davis, supra, 654
F.Supp.at p. 657 [“[P]laintiff cannot prove actual malice merely by

35
asserting that a publisher failed to contact the subject of his
work”].)
Cases based solely on allegations of fictionalizations inherent
to the docudrama genre should never be allowed to go to a jury for
“ ‘ “simple and obvious” ’ ” reasons: 7 “ ‘ “A participant in judicial
proceedings may be utterly free from malice, and yet in the eyes of a
jury be open to that imputation; or he may be cleared by the jury of
the imputation, and may yet have to encounter the expense and
distress of a harassing litigation. With such possibilities hanging
over his head, he cannot be expected to speak with that free and
open mind which the administration of justice demands.” ’ ”
(Fellows, supra, 42 Cal.3d at p. 251.) Indeed, “ ‘because
unnecessarily protracted litigation would have a chilling effect upon
the exercise of First Amendment rights, speedy resolution of cases
involving free speech is desirable.’ ” (Reader’s Digest, supra, 37
Cal.3d at p. 251.)

7 To be clear, Amici’s position here is not that a false light claim

may never lie in the context of a docudrama. Rather, a plaintiff
must meet all the elements of the tort, including a showing that the
challenged statement or implied meaning is highly offensive to a
reasonable person or defamatory. Also, if the plaintiff is a public
figure, as is Ms. de Havilland, then she must also demonstrate that
the defendant acted with constitutional actual malice.
Demonstrating that the defendant employed common storytelling
techniques inherent to the docudrama genre—which is all that Ms.
de Havilland has done—is not enough for a false light claim to
proceed.

36
II. THE FIRST AMENDMENT BROADLY PROTECTS
MOTION PICTURES FROM RIGHT OF PUBLICITY
CLAIMS BECAUSE CREATING A STORY INVOLVING
A REAL PERSON IS NOT COMMERCIALLY
EXPLOITING THAT PERSON’S LIKENESS.

A. The First Amendment provides docudramas with

robust protection against right of publicity claims
because they are vital to public discourse in a free
society.

The trial court’s decision to allow Ms. de Havilland’s right of

publicity claim to proceed is even more threatening to the vibrancy
of the docudrama genre than its false light ruling. Under the First
Amendment, the unbroken line of false light cases discussed above
would make no sense if the right of publicity nevertheless required
that real individuals could not be portrayed in motion pictures
without their consent. A plaintiff could easily do an end-run around
the First Amendment limitations on defamation and false light
claims discussed above by reframing her false light claims as right
of publicity claims. Contrary to the trial court’s analysis,
controlling case law has consistently protected docudrama and
biopic creators from right of publicity claims.
Ms. de Havilland’s right of publicity claim should have been
summarily dismissed. Instead, the trial court reasoned she had
established a substantial probability of prevailing merely because
“no compensation was given despite using her name and likeness.”

37
(4 JA 1094.) This unprecedented interpretation of right of publicity
law is directly contrary to the seminal California right of publicity
case, Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d
860 (Guglielmi). In that case, the successor in interest of actor
Rudolph Valentino sued the creators of a biographical motion
picture telling a fictionalized version of Valentino’s life story. (Id. at
p. 861.) The Supreme Court held that “[w]hether exhibited in
theaters or on television, a film is a medium which is protected by
the constitutional guarantees of free expression” (id. at p. 865 [conc.
opn. of Bird, C.J.]), and therefore the First Amendment furnishes a
complete defense to the plaintiff’s right of publicity claim. 8 The
Court observed that “[c]ontemporary events, symbols and people are
regularly used in fictional works.” (Guglielmi, at p. 869.) Indeed,
“[f]iction writers may be able to more persuasively, or more
accurately, express themselves by weaving into the tale persons or
events familiar to their readers.” (Ibid.) The Court explained that
“[n]o author should be forced into creating mythological worlds or
characters wholly divorced from reality” in order to avoid being
charged with violating a plaintiff’s right of publicity. (Ibid.)
Guglielmi also explained that this First Amendment defense
was equally robust whether the plaintiff was an unknown person or
a celebrity. “Surely, the range of free expression would be

8 Chief Justice Bird’s opinion, although styled a concurrence, was

endorsed by three other justices and therefore “commanded the
support of the majority of the court.” (Comedy III Productions, Inc.
v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 396-397, fn. 7
(Comedy III).) Accordingly, “all [further] references to Guglielmi in
this [brief] will be to the Chief Justice’s opinion.” (Ibid.)

38
meaningfully reduced if prominent persons in the present and
recent past were forbidden topics for the imaginations of authors of
fiction.” (Guglielmi, supra, 25 Cal.3d at p. 869.) Thus, “[w]hether
the publication involved was factual and biographical or fictional,
the right of publicity has not been held to outweigh the value of free
expression. Any other conclusion would allow reports and
commentaries on the thoughts and conduct of public and prominent
persons to be subject to censorship under the guise of preventing the
dissipation of the publicity value of a person’s identity. (Id. at p.
872, fns. omitted.) 9
Since Guglielmi, courts have consistently shielded motion
pictures from right of publicity liability under the First
Amendment, whether the plaintiff’s portrayal was documentary,
biographical, or fictional—or any combination of these genres. (See
Guglielmi, supra, 25 Cal.3d at p. 868 [“no distinction may be drawn
in this context between fictional and factual accounts of Valentino’s
life”]; Polydoros v. Twentieth Century Fox Film Corp. (1997) 67
Cal.App.4th 318, 322 (Polydoros) [California’s right of publicity law
“was never intended to apply to works of pure fiction”]; Dora v.
Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 540-541, 546

9 Guglielmi also held that since the use of the plaintiff’s name and
likeness in the motion picture was not an actionable infringement of
his right of publicity, neither was the use of his identity in
advertisements for that motion picture actionable. (Guglielmi,
supra, 25 Cal.3d at p. 873.) Thus, the trial court here improperly
relied on the use of the likeness of the actress portraying Ms. de
Havilland in a handful of advertisements for Feud as further
indication that her right of publicity claim has merit. (See 4 JA
1092.)

39
[legendary Malibu surfer could not sue makers of documentary
about surfing life-style with film footage of the plaintiff]; Daly v.
Viacom, Inc. (N.D.Cal. 2002) 238 F.Supp.2d 1118, 1123 [“ ‘[u]nder
the First Amendment, a cause of action for appropriation of
another’s ‘name and likeness may not be maintained’ against
‘expressive works, whether factual or fictional’ ”]; Rest.3d Unfair
Competition, § 47, com. c, p. 549 [“use in entertainment and other
creative works” is permitted unless “the name or likeness is used
solely to attract attention to a work that is not related to the
identified person”].)
It is this First Amendment standard that has protected
filmmakers who create popular dramatized motion pictures about or
inspired by real people and events, free from censorious interference
by their subjects, such as Primary Colors (Bill Clinton’s first
presidential campaign), The Devil Wears Prada (Anna Wintour,
editor of Vogue), and Citizen Kane (William Randolph Hearst). The
list of Academy Awards Best Picture nominees from recent years is
crowded with motion pictures of this genre, including: Hidden
Figures, about three female African-American mathematicians who
played a vital role at NASA during the early days of the U.S. space
program; Moneyball, depicting how Billy Beane and his colleagues
from the Oakland Athletics used statistics to change professional
baseball; The Social Network, chronicling the rise of billionaire
Facebook founder Mark Zuckerberg; The Theory of Everything,
about renowned physicist Stephen Hawking, and Spotlight,
recounting how the Boston Globe uncovered the child molestation
scandal and cover-up within the local Catholic Archdiocese.

40
Television producers similarly draw on real people and events to
create educational, entertaining, and critically acclaimed shows. For
example, the acclaimed television docudrama The People v. O.J.
Simpson: American Crime Story told the story of O.J. Simpson’s
murder trial, and Netflix’s The Crown has both educated and
entertained with its portrayal of Queen Elizabeth II’s reign.
The trial court’s ruling here, which found Feud’s creators
subject to a right of publicity claim merely because they received a
financial benefit from airing their work without obtaining
permission from or compensating Ms. de Havilland, would have
subjected all of these culturally significant motion pictures to the
threat of lawsuits from persons seeking to censor or control their
public portrayal under the guise of protecting the economic value of
their personas. O.J. Simpson could have prevented the creators of
The People v. O.J. Simpson from telling the story of his trial unless
they agreed to portray him as completely, undoubtedly innocent.
Mark Zuckerberg could have sued to prevent the telling of the story
of Facebook’s founding unless he and his company were portrayed
without having taken ethical shortcuts to achieve success. Orson
Welles might never have made Citizen Kane, because it is
inconceivable that William Randolph Hearst would have consented
to having his “persona” depicted as so tortured. Furthermore, these
concerns are not limited to the main characters in these motion
pictures—secondary and tertiary characters are chosen by the
creators to populate the fictionalized world of their motion picture
for varied reasons including developing themes, contrasting foils,
providing cultural context, and furthering the plot. Yet under the

41
trial court’s ruling, all of the people portrayed as even minor
characters in docudramas and biopics could bring viable right of
publicity claims. Even if the people portrayed in these motion
pictures were only seeking compensation and not substantive
control, their demands could easily make production too costly for
the work to be made.

B. Permitting a right of publicity claim in the context of

docudramas would violate the First Amendment’s
strict scrutiny test for content-based speech
restrictions because there is no compelling state
interest in enforcing private misappropriation rights
against docudramas.

In Sarver v. Chartier (9th Cir. 2016) 813 F.3d 891, 896

(Sarver), plaintiff Jeffrey Sarver brought a right of publicity claim
against the creators of the critically acclaimed motion picture The
Hurt Locker, based on a journalist’s coverage of Sarver’s experiences
as a United States Army sergeant in Iraq. The Ninth Circuit
affirmed the district court’s grant of the defendants’ anti-SLAPP
motion, holding that the First Amendment barred Sarver’s claim,
and citing Guglielmi with approval. (See id. at p. 905 & fn. 9.)
The Ninth Circuit, however, went further. In the context of
motion pictures, “California’s right of publicity law clearly restricts
speech based upon its content,” and therefore is “presumptively
unconstitutional and may be justified only if the government proves
that [it is] narrowly tailored to serve compelling state interests.”

42
(Sarver, supra, 813 F.3d at p. 903, emphasis added; see also Hilton
v. Hallmark Cards (9th Cir. 2010) 599 F.3d 894, 909, fn. 11
[reserving the question “whether the First Amendment furnishes a
defense to misappropriation of publicity that is broader than the
transformative use or public interest defenses”].) 10
Sarver reasoned that a state’s interest in permitting a right of
publicity claim to proceed is only sufficiently compelling to survive
strict scrutiny where the defendant’s work “either appropriates the
economic value of a performance or persona or seeks to capitalize off
a celebrity’s image in commercial advertisements.” (Sarver, supra,
813 F.3d at p. 905.) The Hurt Locker, which told a story about
Sarver’s experiences, did neither. Therefore, “The Hurt Locker is
speech that is fully protected by the First Amendment, which
safeguards the storytellers and artists who take the raw materials
of life—including the stories of real individuals, ordinary or
extraordinary—and transform them into art, be it articles, books,
movies, or plays.” (Ibid.) The same First Amendment protections
apply to Feud, which transforms the story of Crawford and Davis’s
rivalry into a multi-episode television documentary exploring
sexism in Hollywood and other timely cultural issues.

10 Courts outside of California have similarly construed their

misappropriation/right of publicity statutes as inapplicable to
motion picture storytelling. (See e.g., Tyne v. Time Warner
Entertainment Co. (Fla. 2005) 901 So.2d 802, 808, 809 [applying
Florida’s misappropriation statute to The Perfect Storm would raise
“a fundamental constitutional concern” and other courts “have
similarly concluded that works such as the picture in the instant
case would be protected by the First Amendment”].)

43
 Although the Sarver court also observed that the plaintiff in
that case was a private person who had not invested time or money
to build up a marketable persona, Sarver’s First Amendment
analysis cannot be understood to be limited to persons who have not
sought or achieved fame. The court’s conclusion was that the First
Amendment “safeguards the storytellers and artists” who use
stories of “real individuals, ordinary or extraordinary” as the raw
materials for their artistry. (Sarver, supra, 813 F.3d at p. 905,
emphasis added.) Indeed, the more important or famous a person
is, the more imperative that the First Amendment protects the right
of others to tell her story, including the right to assess or criticize
her free from the fear of litigation. (See Guglielmi, supra, 25 Cal.3d
at p. 869.) The First Amendment means nothing if it does not
protect the right of artists to create controversial, even unflattering,
works about our leaders and celebrities. Thus this Court should
apply the strict scrutiny standard to right of publicity claims, just as
the Ninth Circuit did in Sarver.

C. The transformative use test has not and should not be

applied to motion pictures.

Long after Guglielmi established broad constitutional

protection for the creators of fictional docudramas, biopics and other
motion pictures based on the lives of real people, the California
Supreme Court extended First Amendment protections against
right of publicity claims to mass produced consumer products with
an expressive element, like T-shirts printed with celebrity portraits.

44
For these products, the Court held, the transformative use test
could be used to determine whether the First Amendment barred
the claims. (See Comedy III, supra, 25 Cal.4th at pp. 391, 404-407;
Volokh, Freedom of Speech and the Right of Publicity (2003) 40
Hous. L.Rev. 903, 915-916 [transformative use test created to assess
“ ‘conventional’ celebrity memorabilia”].) In the context of T-shirts
printed with images of the Three Stooges, the defendant could
establish a First Amendment defense to a right of publicity claim by
showing that the work “contains significant transformative
elements” or the work’s value “does not derive primarily from the
celebrity’s fame.” (Comedy III, at p. 407; see id. at p. 391.) The
court must decide whether, on the one hand, the plaintiff’s likeness
is used as the raw material for someone else’s creative expression,
or on the other hand, whether the defendant is simply
merchandising the plaintiff’s image. 11 (See Comedy III, at pp. 404-
407; accord, Winter v. DC Comics (2003) 30 Cal.4th 881, 888-890.)
Thus, under the transformative use test, right of publicity claims
are not viable when asserted against artistic expression, but they
may be viable against crass commercialization.
The trial court here fundamentally erred by using the
transformative use test to find that Feud could be liable for

11 A right of publicity claim may lie where the defendant’s work

uses the plaintiff’s likeness to endorse a product. (See Comedy III,
supra, 25 Cal.4th at p. 395.) As a matter of law, however, the mere
portrayal of a person as a character in a dramatization of historical
events to which that person is relevant is not sufficient to show a
viable “endorsement” claim. (See Guglielmi, supra, 25 Cal.3d at p.
865, fn. 6.) Yet, that is the sole basis for Ms. de Havilland’s thin
endorsement theory. (See AOB 60.)

45
violating Ms. de Havilland’s right of publicity. Comedy III did not
suggest that the transformative use test should be applied to motion
pictures. On the contrary, it favorably cited Guglielmi multiple
times, reaffirming the vitality of that decision’s robust First
Amendment protection for motion pictures. (See Comedy III, supra,
25 Cal.4th at pp. 396-398 & fn. 7.) Comedy III further cautioned
that “the very importance of celebrities in society means that the
right of publicity has the potential of censoring significant
expression by suppressing alternative versions of celebrity images
that are iconoclastic, irreverent, or otherwise attempt to redefine
the celebrity’s meaning.” (Id. at p. 397.) The trial court’s decision
here to apply the transformative use test to a motion picture is
unprecedented. Notably, the trial court did not cite a case, from
California or anywhere, applying the transformative use test to any
type of fictional or dramatic—or even non-fictional—motion picture.
(See 4 JA 1094-1096.) Thus, this court should reaffirm Guglielmi’s
mandate and hold that the transformative use test does not apply to
fictionalized motion pictures such as docudramas and biopics.
The trial court compounded its error by focusing only on
whether the actual likeness of the plaintiff within the work was
sufficiently transformed, as opposed to whether the work as a whole
was sufficiently transformative. (See 4 JA 1095 [“because the
Defendants admit that they wanted to make the appearance of
Plaintiff as real as possible [citation], there is nothing
transformative about the docudrama”].) Guglielmi, however, held
in the context of a docudrama that “[n]o author should be forced into
creating mythological worlds or characters wholly divorced from

46
reality.” (Guglielmi, supra, 25 Cal.3d at p. 869.) Thus, the trial
court demanded the very type of alterations that the California
Supreme Court has held are not required to insulate motion
pictures from right of publicity claims. In any event, it is clear
that Feud as a whole is transformative as a matter of law. Ms. de
Havilland’s likeness may be realistic, but she appears as a
secondary character in a fictionalized, multi-episode, television
show that explores themes of fame, feminism, and patriarchy in
modern America. Her likeness, recreated with great skill and
artistry by another famous actress, Catherine Zeta-Jones, is “one of
the ‘raw materials’ from which [Feud] is synthesized,” not “the very
sum and substance of” that show. (Comedy III, supra, 25 Cal.4th at
p. 406.)
The trial court’s ruling to the contrary turns the right of
publicity on its head—even if that cause of action had a place in the
context of motion pictures, which it does not. In the context of
fictional motion pictures, for example, even a realistic portrayal of a
person is, by definition: (a) not merchandizing, and (b) more than a
carbon copy of that person’s life. Filmmakers and other authors
make creative choices about which events to include or omit, and in
what order. Incorporating events from a real person’s life allows
viewers to experience important historical, cultural, and personal
events. Indeed, actors are lauded for their ability to realistically
portray famous people, as was Natalie Portman for her Oscar-
nominated performance as First Lady Jacqueline Kennedy in

47
Jackie, 12 and Margot Robbie for her Oscar-nominated performance
as Olympic figure skater Tonya Harding in I, Tonya. 13 In short, the
realistic portrayal of another person in docudramas and similar
fictional art forms is part of the craft that enhances the expressive
power of the works, and renders them transformative as a matter of
law. This is as it should be, and surely is fully protected by the
First Amendment.

D. Consent or compensation is not required to protect

against right of publicity claims, lest important
expressive works become subject to censorship by
their subjects.

The trial court veered far from governing law by holding that
Ms. de Havilland’s claims could proceed despite their First
Amendment implications because the defendants did not obtain her
consent and negotiate compensation for the use of her likeness. (4
JA 1094.) Just as factual news coverage cannot be constitutionally
censored by individuals seeking to avoid media attention or

12 See Svetkey, Making of ‘Jackie’: How a Chilean Director

Convinced Natalie Portman to Play the Grieving First Lady, The
Hollywood Reporter (Dec. 1, 2016) <https://goo.gl/oMisiw>
[describing Portman’s extensive research to portray Kennedy
accurately] [as of Jan. 23, 2018].

13 Fleming, ‘I, Tonya’s Margot Robbie Goes For Gold Playing

Disgraced Olympic Figure Skater, Deadline (Nov. 29, 2017)
<https://goo.gl/ZSpXyY> [as of Jan. 24, 2018].

48
criticism, it is well established that unauthorized biographies,
historical stories, and other expressive works—both fictional and
non-fictional—enjoy full First Amendment protection. (See, e.g.,
Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 695
[“ ‘[T]he constitutional guarantees of freedom of expression apply
with equal force to the publication whether it be a news report or an
entertainment feature’ ”].) “Surely, the range of free expression
would be meaningfully reduced if prominent persons in the present
and recent past were forbidden topics for the imaginations of
authors of fiction.” (Guglielmi, supra, 25 Cal.3d at p. 869.) Indeed,
“prominence invites creative comment.” (Ibid.) Requiring consent
from an individual before portraying her in a docudrama based on
or inspired by historical events in which she was involved “would
allow reports and commentaries on the thoughts and conduct of
public and prominent persons to be subject to censorship under the
guise of preventing the dissipation of the publicity value of a
person’s identity.” (Id. at p. 872.)
As one leading commentator explained:
If the law mandated that the permission of every living
person and the descendants of every deceased person
must be obtained to include mention of them in news
and stories, both in documentary and docudrama
telling, then they would have the right to refuse
permission unless the story was told “their way.” That
would mean that those who are participants in the
news and history could censor and write the story and
their descendants could do the same. This would be
anathema to the core concept of free speech and a free
press.

49
(2 McCarthy, The Rights of Publicity & Privacy (2d ed. 2017)
§ 8:64.)
The trial court here was swayed by a declaration Ms. de
Havilland solicited from a self-professed “expert,” with no known
experience in the docudrama genre, 14 baldly claiming there is some
sort of industry standard for obtaining celebrities’ consent before
using their likeness in all motion pictures—a factual contention
that the MPAA and Netflix would vigorously dispute if it were
relevant. (See JA 1094.) The purported industry standard,
however, is not relevant because motion picture creators, including
docudrama screenwriters, “have a constitutional right to free
expression, which they exercised when they made and released this
film.” (Polydoros, supra, 67 Cal.App.4th at p. 326.) Any supposed
“industry custom of obtaining ‘clearance’ establishes nothing, other
than the unfortunate reality that many filmmakers may deem it
wise to pay a small sum up front for a written consent to avoid later
having to spend a small fortune to defend unmeritorious lawsuits
such as this one.” (Ibid.)

14 See Cort Casady, IMDb <https://goo.gl/3hPkwv> [Internet Movie

Database entry listing Mr. Casady’s work on numerous awards
shows, but no docudramas] [as of Jan. 23, 2018].

50
III. THE TRIAL COURT’S ANALYSIS WOULD CREATE A
CATCH-22 FOR CREATORS OF ALL TYPES OF
FICTIONALIZED MOTION PICTURES ABOUT REAL
PEOPLE AND EVENTS THAT WOULD THREATEN
THE FUTURE OF THESE IMPORTANT WORKS.

The trial court’s analysis of Ms. de Havilland’s publicity and

false light claims would create a Catch-22 for creators of dramatic
and fictionalized motion pictures inspired by or about real people or
events that, if affirmed, would have a chilling effect on their
creation.
Under the trial court’s analysis here, any docudrama that
purports to show its subjects realistically would be insufficiently
transformative and therefore violate the right of publicity. (See 4
JA 1095 [“because the Defendants admit that they wanted to make
the appearance of Plaintiff as real as possible [citation], there is
nothing transformative about the docudrama”].) At the same time,
under the court’s analysis, any docudrama that is sufficiently
transformative to avoid right of publicity liability will be sufficiently
knowingly false to be exposed to false light liability. (See 4 JA 1091
[“Plaintiff has sufficiently met her burden by showing that although
the Defendants sought to be ‘consistent with the historical record,’
they attributed comments to her ‘with knowledge that it was false
or with reckless disregard of whether it was false or not’ ”].)
If affirmed, the result would be that almost all docudramas
and other fictionalized works based on actual events and real
people, whether depicted as realistically as possible or as highly

51
fictionalized, will lose First Amendment protection, thus depriving
the public of these historically and culturally important works. As
the United States Supreme Court has explained, “Exposure of the
self to others in varying degrees is a concomitant of life in a civilized
community. The risk of this exposure is an essential incident of life
in a society which places a primary value on freedom of speech and
of press.” (Time, Inc. v. Hill (1967) 385 U.S. 374, 388 [87 S.Ct. 534,
17 L.Ed.2d 456].) First Amendment protections “are not for the
benefit of the press so much as for the benefit of all of us. A broadly
defined freedom of the press assures the maintenance of our
political system and an open society. Fear of large verdicts in
damage suits for innocent or merely negligent misstatement, even
fear of the expense involved in their defense, must inevitably cause
publishers to ‘steer * * * wider of the unlawful zone,’ [Citations];
and thus ‘create the danger that the legitimate utterance will be
penalized.’ ” (Id. at p. 389; see also id. at pp. 401-402 (conc. opn. of
Douglas, J.) [“Once we narrow the ambit of the First Amendment,
creative writing is imperiled and the ‘chilling effect’ on free
expression . . . is almost sure to take place”].)

CONCLUSION

For the foregoing reasons, the relief requested in the

appellants’ opening brief should be granted. Amici urge this court
to make clear that a plaintiff cannot assert a viable false light claim
against a docudrama, biopic or historical drama based on the
creators’ use of storytelling techniques inherent in those genres.

52
This court should also make clear that despite intervening cases in
later years addressing works outside the context of motion pictures,
Guglielmi is still the governing law in California with regards to
motion pictures, and that right of publicity claims may not be
asserted against motion pictures that tell stories about or inspired
by real people or events.

January 25, 2018 HORVITZ & LEVY LLP

FREDERIC D. COHEN
MARK A. KRESSEL

By:
Mark A. Kressel

Attorneys for Amicus Curiae

MOTION PICTURE ASSOCIATION
OF AMERICA, INC. and NETFLIX,
INC.

53
 CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 8.204(c)(1).)

The text of this brief consists of 11,020 words as counted by

the Microsoft Word version 2010 word processing program used to
generate the brief.

Dated: January 25, 2018

Mark A. Kressel

54
 PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF LOS ANGELES

At the time of service, I was over 18 years of age and not a party to this action. I
am employed in the County of Los Angeles, State of California. My business address is
3601 West Olive Avenue, 8th Floor, Burbank, California 91505-4681.

On January 25, 2018, I served true copies of the following document(s) described
as APPLICATION FOR LEAVE TO FILE AMICUS CURIAE BRIEF; AMICUS
CURIAE BRIEF OF MOTION PICTURE ASSOCIATION OF AMERICA, INC.
AND NETFLIX, INC. IN SUPPORT OF FX NETWORKS, LLC AND PACIFIC 2.1
ENTERTAINMENT GROUP, INC. on the interested parties in this action as follows:

SEE ATTACHED SERVICE LIST

BY MAIL: I enclosed the document(s) in a sealed envelope or package

addressed to the persons at the addresses listed in the Service List and placed the
envelope for collection and mailing, following our ordinary business practices. I am
readily familiar with Horvitz & Levy LLP’s practice for collecting and processing
correspondence for mailing. On the same day that the correspondence is placed for
collection and mailing, it is deposited in the ordinary course of business with the
United States Postal Service, in a sealed envelope with postage fully prepaid.

BY E-MAIL OR ELECTRONIC TRANSMISSION: Based on a court order or

an agreement of the parties to accept service by e-mail or electronic transmission via
Court’s Electronic Filing System (EFS) operated by ImageSoft TrueFiling (TrueFiling)
as indicated on the attached service list.

I declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct.

Executed on January 25, 2018, at Burbank, California.

Raeann Diamond

55
 SERVICE LIST
De Havilland v. Pacific 2.1 Entertainment Group, Inc. et al.
Court of Appeal No. B285629

Glenn D. Pomerantz Counsel for Defendants and Appellants

Kelly M. Klaus
Fred A. Rowley
Munger Tolles & Olson LLP
350 South Grand Avenue, 50th Floor
Los Angeles, CA 90071-1560
E-mail: glenn.pomerantz@mto.com
E-mail: kelly.klaus@mto.com
E-mail: fred.rowley@mto.com
FX Networks, LLC and Pacific 2.1
Entertainment Group, Inc.
Electronic Copy
via Court’s Electronic Filing System (EFS)
operated by ImageSoft TrueFiling (True Filing)

Don Howarth Counsel for Plaintiff and Respondent

Suzelle M. Smith Olivia de Havilland, DBE
Zoe E. Tremayne
Howarth & Smith
523 West 6th Street, Suite 728 Electronic Copy
Los Angeles, CA 90014-1223 via Court’s Electronic Filing System (EFS)
E-mail: dhowarth@howarth-smith.com operated by ImageSoft TrueFiling (True Filing)
E-mail: ssmith@howarth-smith.com
E-mail: ztremayne@howarth-smith.com

Kelli L. Sager Counsel for Amici Curiae

Rochelle L. Wilcox A&E Television Networks, LLC; Discovery
Davis Wright Tremaine LLP Communications, LLC; Imperative
865 South Figueroa Street, Suite 2400 Entertainment, LLC; Urban One, Inc.;
Los Angeles, CA 90017-2566 Critical Content, LLC; Reporters
E-mail: kellisager@dwt.com Committee for Freedom of the Press; and
E-mail: rochellewilcox@dwt.com First Amendment Coalition

Electronic Copy
via Court’s Electronic Filing System (EFS)
operated by ImageSoft TrueFiling (True Filing)

Jennifer E. Rothman Counsel for Amici Curiae

Loyola Law School Intellectual Property and Constitutional
919 Albany Street Law Professors
Los Angeles, CA 90015-1211
E-mail: rothmanj@lls.edu Electronic Copy
via Court’s Electronic Filing System (EFS)
operated by ImageSoft TrueFiling (True Filing)

56
Eugene Volokh
UCLA School of Law
405 Hilgard Avenue
Los Angeles, CA 90095-9000
E-mail: volokh@law.ucla.edu
Hon. Holly E.M. Kendig
Los Angeles Superior Court
Stanley Mosk Courthouse
111 North Hill Street, Dept. 42
Los Angeles, CA 90012-3117
Clerk of the Court
California Supreme Court
350 McAllister Street, Room 1295
San Francisco, CA 94102
57
Counsel for Amici Curiae
Intellectual Property and Constitutional
Law Professors
Electronic Copy
via Court’s Electronic Filing System (EFS)
operated by ImageSoft TrueFiling (True Filing)
Trial Judge
Case No. BF056018
Hard copy via U.S. Mail
Electronic Copy per CRC, Rule 8.212
(c)(2).
Electronic Copy
via Court’s Electronic Filing System (EFS)
operated by ImageSoft TrueFiling (True
Filing)